Letter from Village of Montebello Attorney to RECLAIM NY, Rebutting Claim of FOIL-Denial

I am writing as the village attorney for the Village of Montebello, having served in that capacity since incorporation on May 7, 1986. Given my service for over 30 years, and having all legal work leading to incorporation, it is fair to state that I am quite versed in the history of the Village, including the straight forward, transparent and entirely above-board way in which it conducts its business.

Furthermore, I have been general counsel to a large school district since 1978. Hence, I am quite familiar with both FOIL and the OML, having dealt with such laws since their infancy. Needless to say, I have had many, many dealing with the Committee on Open Government (“COG”), and in particular with its executive director, Bob Freeman. Thus, it is also fair to state, as I believe Bob would confirm, that my clients endeavor to follow the spirit and substance of said laws.

Given the above background, I was startled and appalled to note “your” article in the Rockland County Times on November 15, which quite inappropriately and incorrectly lists my Village as one of the handful of alleged law breakers in the Hudson Valley. Reportedly, Montebello “denied” a FOIL request from your organization, I investigated to ascertain what may have happened, as I knew my Village to have always prided itself of being FOIL compliant. Here is what I learned (including background information obviously unknown to you):
1. Debra Mastroeni, our very able Village Clerk of 17 years, resigned for purposes of retirement effective October 31, 2015.

2. Gloria Scalisi was promoted to the position effective November 1, 2015, which necessitated some training on the job. Hence, Ms. Mastroeni was retained as a consultant from afar to assist Gloria upon her inquiry. To compound this change, our major, Dr. Jeffery Oppenheim, resigned effective in January 20, 2016, because of a change of resident to outside of our village. Deputy Mayor Lance N. Millman resigned his trustee position and was appointed by the Village Board as mayor, effective January 20, 2016.

4. Needless to say, both of these changes necessarily initially impacted the business as usual functioning of the Village Hall. Making matters much worse, our new village clerk was stricken with a profound ailment. While, despite the ravages of same and the significant need for outside medical attention, she attempted to come to work every day that she could, her ability do so diminished over time. Quite sadly, she succumbed to her ailment passed on October 12, 2016.

5. I have determined that your FOIL application arrived at a time when Gloria’s dire medical circumstances caused her absence. Indeed, I learned that our deputy clerk felt compelled to contact the retired clerk about your FOIL application. From what I also gathered, she was told to check with me, but to provide all abstracts and schedules of claims for 2014. As you can imagine, this was the height of the crisis precipitated by Gloria’s failing health. This was never brought to my attention and fell through the cracks as the staff attempted to keep the village afloat.

What is clear is that the village did not deny your FOIL request. Had you made further inquiry, or appealed if you thought there had been a denial before such a rash attribution, the staff would have been alerted, would have alerted me and our appeals officer, and FOIL would have been met.

I am copying Joan Will, our new village clerk, who began work on Nov. 28. She now serves as our records access officer. The mayor, Lance N. Millman, is our appeals officer. Assuming you still [desire] the records, we are prepared to supply [them]. In the totality of circumstances, in the interests of fairness and accurate reporting, it would be appreciated if you would follow-up the prior article with another clarifying that in Montebello, at least, there was no denial.

Sincerely,
Warren E. Berbit
Village attorney
CC: Mayor Lance N. Millman, the Village Board of Trustees and the village clerk